concurring.
I join the Court’s opinion. I deem it appropriate, however, to add a few comments to what my Brother Clark has written because the issue decided is one of first impression and to allay possible misapprehension as to the possible reach of this decision.
We hold today that a treble-damage action for monopolization which, but for the existence of a patent, would be violative of § 2 of the Sherman Act may be maintained under § 4 of the Clayton Act if two conditions are satisfied: (1) the relevant patent is shown to have been procured by knowing and willful fraud practiced by the defendant on the Patent Office or, if the defendant was not the original patent applicant, he had been enforcing the patent with knowledge of the fraudulent manner in which it was obtained; and (2) all the elements otherwise necessary to establish a § 2 monopolization charge are proved. Conversely, such a private cause of action would not be made out if the plaintiff: (1) showed no more than invalidity of the patent arising, for example, from a judicial finding of ‘obviousness’ or from other factors sometimes compendiously referred to as ‘technical fraud’; or (2) showed fraudulent procurement, but no knowledge thereof by the defendant; or (3) failed to prove the elements of a § 2 charge even though he has established actual fraud in the procurement of the patent and the defendant’s knowledge of that fraud.
It is well also to recognize the rationale underlying this decision, aimed of course at achieving a suitable accommodation in this area between the differing policies of the patent and antitrust laws. To hold, as we do, that private suits may be instituted under § 4 of the Clayton Act to recover damages for Sherman Act monopolization knowingly practiced under the guise of a patent procured by deliberate fraud, cannot well be thought to impinge upon the policy of the patent laws to encourage inventions and their disclosure. Hence, as to this class of improper patent monopolies, antitrust remedies should be allowed room for full play. On the other hand, to hold, as we do not, that private antitrust suits might also reach monopolies practiced under patents that for one reason or another may turn out to be avoidable under one or more of the numerous technicalities attending the issuance of a patent, might well chill the disclosure of inventions through the obtaining of a patent because of fear of the vexations or punitive consequences of treble-damage suits. Hence, this private antitrust remedy should not be deemed available to reach § 2 monopolies carried on under a nonfraudulently procured patent.
These contrasting factors at once serve to justify our present holding and to mark the limits of its application.
Moreover, Justice Harlan’s separate concurring opinion clearly negates the existence of any per se rule.
The Court then concludes that no proofs were offered to support a Section 2 viola*28tion and thus no Section 2 findings were authorized or made.**
The conclusion is inescapable that trebling was not authorized on this record and thus the motion to Amend or Alter the Judgment must be GRANTED.
Inasmuch as the judgment has been amended by reducing it by two thirds to correct for improper trebling, the issue remaining concerning bond pending appeal has changed and the current filings are not pertinent to a judgment only one third as large as when they were filed. In the context of the amended judgment, any issues regarding bonding on appeal must be presented anew.
As to the award of attorneys’ fees, it appears that an attorney’s fee allowable under 35 U.S.C. § 285 is a reasonable attorney’s fee and not merely the attorneys' fees paid by Burroughs. Accordingly, the acceptance of the attorneys’ fees and costs paid by Burroughs was likewise erroneous. Hence, that portion of the judgment setting the amount is likewise vacated. The parties are directed to meet within 30 days from the date hereof and provide within 10 days thereafter a stipulation related to the portion of attorneys’ fees agreed upon and that which is in dispute; also said stipulation must set forth what discovery Hart-Carter wishes, the basis therefor and a schedule for completion. Burroughs shall respond as to which discovery it objects, the basis for the objection and its suggested schedule.
IT IS SO ORDERED.
The language of the court in its original opinion at p. 1347 "... therefore it is found that the relevant market is the gravity flow, grain dryers which use air recirculation and reversal .. — is unfortunate for it inappropriately made it appear to be a Section 2 finding. At that time, the Court was not concerned with Section 2 findings as it was improperly reading Milacron as authorizing a per se ruling. The statement was correct but it was not a Section 2 finding. It was merely referring to the direct product competition with which the case dealt.